The way things have gone lately, I thought it was time to reprise this blog post, originally published in April of 2014. It is unfortunate for the system and the litigants to have to endure the misrepresentations by people who should know better.
I like a good joke as much as the next person. That said, like many in my profession, I get sensitive about lawyer jokes. Often, they are just cheap shots that in no way reflect the reality of what most of us do. I particularly despise this one, “How can you tell when a lawyer is lying? His lips are moving.”
This one is particularly offensive on many levels. Justice cannot tolerate dishonesty on the part of the lawyer. In fact, honesty permeates the Rules of Professional Conduct: meritorious claims and contentions; duty of candor to the tribunal; fairness to the opposing party and counsel; truthfulness in statements to others; not engaging in conduct that involving fraud, deceit, dishonesty, mispresentation or that which is prejudicial to the administration of justice are just a few of the rules where the bedrock is the lawyer being truthful. There is an expectation in the system that someone is not telling the truth. That is why judges and juries have to determine who is more credible. That said, a lawyer cannot allow their client to get on the stand and lie.
(photo courtesy of free Google images.)
Unfortunately, however, lawyers lie all of the time. Small lies and big lies. They lie to their adversaries and they lie to judges. I am not talking about an honest mistake – you believed that documents were not provided, but they actually were. That said, too few people will even admit to the honest error, and then perpetuate the side show rather than just acknowledging that they were wrong with a lower case “w.” Efforts then digress into addressing the misrepresentation that could simply be avoided.
A few years back, I was new to a case and at a case management conference, the other side alleged that my client had not produced his tax returns. I did not believe this to be true and said as much, but I had only been in the case for a few days. The judge reamed my client. When I got back to my office, I contacted prior counsel who not only confirmed that the tax returns were produced, but there were emails from the adversaries office confirming receipt. Given that my client had just been ripped by the judge, I asked the adversary to simply correct what must have been an inadvertent mistake. She refused and then it became a much bigger issue. It was a total and needless waste of time.
That’s a small lie that caused damage. What about the big lie? In one matter, opposing counsel insists that he was called “stupid” in a letter from one of my colleagues, and worse yet, that that letter justifies his vendetta against our client. The problem is that no such letter exists yet he persists in pursuing this phantom letter, to the detriment of his client and ours.
In another matter, a lawyer denied taking a position on a major issue in the case in an earlier motion, even after the transcript showed otherwise. She disavowed her own statement.
In another matter, the adversary epitomizes the distasteful joke noted above, from telling a court that documents were signed to allow us to get documents, when they were not, to misrepresenting income, to denying events that are not deniable, and on and on.
Why do lawyers lie? Some do it to get an advantage in the case. Some do it because they are afraid of losing the client if they don’t do their client’s bidding and/or are unsuccessful. Some do it because it is a personal game – I win – you lose. Some do it because they are unprepared or did not do what they are supposed to do so they are covering up. Some do it to cover for their client’s misdeeds. Some do it because they just always lie. For some, it is all of the above.
What do you do about it? You raise the issue to the judge – but often, the judge doesn’t do anything about it. Some times, it takes a trial to prove it and trials are few and far between. Further, ethics complaints are usually tabled if not dismissed until a litigation is over. If the perpetrator is a junior lawyer, perhaps you speak to their supervisor – but often that goes no where, because people protect their own.
That said, don’t let it go. Call the person out. Be prepared with your proofs. At the appropriate time at a motion or a trial, let the judge know. Litigation is hard enough when people play it straight. It is untenable when they lie and it does a disservice to the litigants, the courts and the system. Moreover, clients are outraged when their spouse lies, but when it is the other lawyer, it is often impossible to control the justifiable outburst. And lawyers, if you accidentally misspeak or make an honest mistake – you are human – it is better to own up to it and put the issue to bed then let it fester into something unnecessary and totally avoidable. And don’t tell the big lie, for any reason.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.